The Legal System Students learn to: Students learn about Basic legal concepts ● Define law. ● ● ● Distinguish between customs, rules, laws, values and ethics. ● ● ● ● ● ● ● Describe the characteristics of just laws and the nature of justice. ● Meaning of law - Laws are made by a sovereign power, a person or institution who has the legal authority to make laws. - Laws are put in place to create order and safety for society. - This may include the parliament, courts and people who have been delegated, such as the local councils. Define laws - Being the system of rules which govern/ regulate the members within a nation state (Cambridge Dictionary, 2020, Collins Dictionary 2020) Customs - Are traditional ways of behaving, which have developed over time Rules - Are guidelines on behaviour, outlining what can and can’t be done. They apply only to certain people at certain times. Law - Legal requirements which apply to everyone equally, which are enforced upon all members of society Values - Moral concepts that are held important. Ethics - Moral principles which govern a person’s behaviour. Characteristics of just law - Is known to the public and hence easily accessible - Is widely accepted - Provides stability and predictability - Flexible enough to provide justice in various situations - Allows for different levels of severity - Follows the requirements of procedural fairness - Upholds and protects human rights - Is not applied retrospectively nature of justice Fairness + Equality + Access = Justice ○ Fairness - ● Define anarchy and tyranny. ● ● ● Define and investigate procedural fairness and the rule of law. ● ● Ensures that the law does not apply harshly to particular groups of people → fines for a homeless person vs a comfortable person must be adjusted to suit the situation ○ Equality - Laws must apply equally to all people. - However, the law must take into consideration; - Different people’s capabilities → age, mental health - The vulnerability of different people and provide protection → children ○ Access - People must be able to access legal information as well as legal aid → using plain English in contracts procedural fairness (principles of natural justice) - The right to know what you’re accused of - The right to a fair hearing - Unbiased judge - Prepare your case without any external interference - The presumption of innocence until proven guilty - The right to an appeal - Legal decisions are made according to relevant evidence - Transparency → no secret trials rule of law - Nobody is above the law, the law applies equally to everyone Anarchy - The absence of laws or when laws are not being enforced, typically resulting in chaos Tyranny - A cruel or oppressive government, dictatorship Sources of contemporary Australian law ● Outline the origin of common law. Common law ● - British origins, including: ○ development of common law Common law was developed by King William, in England to ensure that all disputes across England were settled the same ● ● Examine the hierarchy and jurisdiction of state and federal courts. - The Justices (Judges) sent out by the king ensured that a common set of laws were enforced for everyone to follow. ○ equity Equity operates alongside common law and was established to provide justice where common law would have lead to injustice Given that common law became rigid it led to injustice Equity considers the individual circumstance Decisions made by equity law would prevail over common law decisions ○ precedent Using decisions made by previous judges to determine the outcome of the case The same reasoning and thinking are to be applied to the current case The Judge must interpret the words of the statute to determine whether the statute is applicable to the current case. Decisions made by judges are binding to all judges in lower courts → ratio dicta (the rationale behind decision) Decisions made internationally are not binding but are persuasive and should be taken into consideration by Australian judges. → obiter dicta Statute laws override precedents Precedent can be avoided by judges if they can prove that the facts are not similar ○ The adversarial system of trial There are two opposing sides which present evidence supporting their cases (defense and prosecution) Any side can challenge the evidence presented by the opposition Judges act like referees to ensure the rules are followed All evidence is thoroughly tested The binding decision is made by the judge or the magistrate and is typically supported by the jury Only the two parties can question the witnesses this excludes the judge and jury ○ Inquisitorial system of trial Judge/magistrate play an active role in uncovering the truth by inquiring The judge controls what evidence is introduced The judge can question the witness Precedent is not followed nor binding court hierarchy: ○ jurisdiction of state NSW local courts - Civil disputes of upto $100,000 - Summary offences - Committal hearings → decide on whether there is enough evidence for the case to go on and which court it’ll be heard in Children’s court - Only matter where the offender is a child - - - - - - - - - - Care and protection of children Coroner's court - Inquests → investigations into suspicious deaths and fires - Can make recommendations about action which can be taken to prevent future deaths NSW District court - Civil cases of upto $750,000 - Indictable offences Drug court - Deals with offenders dependent on drugs - To ensure they are issued with appropriate punishments → rehab NSW supreme court (single judge) - Civil cases involving over $750,000 - Serious civil matters such as will and injunctions - Indictable offences → murder NSW court of criminal appeal (3 judges) - Deals with appeals - Hears ‘stated’ cases (summarised, not going through the whole appeal) → what grounds the appeal is being made on NSW civil court of appeal (3judges) - Part of the Supreme court High court (partial) - Has 1-3 judges - Appeals from the NSW court of appeals; civil and criminal High court (full) - 7 judges, hears constitutional matters ○ jurisdiction of federal courts Federal circuit court - Jurisdiction → family law, administrative, bankruptcy, human rights, consumer matters, privacy, migration, intellectual property, industrial law, Federal court - Superior than the FCC and hears more complex matters may include natice title Full court of federal court (appellate jurisdiction) - 3 judges hear appeals from the singular federal court judge - Appeals from Norfolk island and FCC - Family court - Hears most complex family law disputes → validity of marriage, parenting cases involving serious abuse of children, complex financial arrangements - Full court of family court - Consists of 3 judges, hearing appeals from family court and FCC High court - Ultimate authority regarding Australian law - 7 high court judges - Interpret and apply the laws of Australia - Challenges the constitutional validity - Appeals made by ‘special leave’ (not all appeals go through) - Considers new principles of law Statute law ● - ● Outline the role and structure of parliament and the legislative process. ● role and structure of parliament The parliament is comprised of two houses - the Senate and the House of Reps The role of the House of Reps is - They form the government - They debate matters of local electoral concerns - Consider bills - Debate national matters - Scrutinise the power of the executive government The role of the Senate is to - Propose amendments to bills - Represent the interests of their states or territories - Prepare and deliver speeches - Listen to ministerial statements - Consider and vote on bills - Consider the recommendations of committees legislative process 1. Law is proposed; at this stage it is a bill 2. A bill is drafted by government lawyers 3. First Reading; no discussion takes place, members familiarise themselves with the Bill Second Reading; takes place in the same house, the responsible minister debates the positives of the Bill Committee Stage;bill is debated in detail, according to sections, amendments may be made Third Reading; the bill is voted on, if majority vote takes place, then the bill moves into the Senate (or house of reps) First, second, third readings take place in the Senate (usually), if changes are made the Bill is sent back to the original house for another debate. 8. Once the bill is approved it’s sent to the Governor General for royal assent, when it is signed it becomes a legally binding Act of Parliament. delegated legislation Delegated legislation is the laws made by government agencies, ministers, councils or the Governor General Power is delegated to maintain efficiency Delegates legislation are known as regulations, ordinances or by-laws 4. 5. 6. 7. ● Describe the function of delegated legislation. ● - AGAINST - ● Explain the difference between division and separation of powers. Delegated institutions are not elected and therefore do not represent the best interests of society Do not go through the bicameral process of law making, in turn, they lack checks and balances → potential to make corrupt decisions OR exploit their power The constitution - The constitution defines and limits the power of the government - It outlines the role of the high court - In order to make amendments, referendums must pass a double majority vote - Majority votes from the population of the states and 4/6 states ● division of powers - Splits the powers between the federal and state governments - Each arm of government must make laws according to their legislative power - Sections 51 of the Constitution outlines ‘the heads of power’ - matters which only federal government has legislative power over - Residual powers are those not specified for the federal government - Crime, health, transport - Concurrent powers are the shared powers between the state and federal governments - According to section 109 federal law always prevails - Sections 52 outlines the exclusive powers of the federal government - Defence, immigration, currency foreign relations ● separation of power - The roles of the parliament/legislature, judiciary and the executive are outlined in the first three chapters of the Constitution - Parliament; make and amend laws - ● Examine the role of the High Court in the interpretation of the constitution. ● - - - Also known as the legislature, consists of the queen, senate and house of reps Executive; enforces laws (department of health/taxation) - Queen, prime minister and other ministers Judiciary; interprets and makes judgments about the law No on group can abuse their power, the separation of powers acts as a checks and balances role of the High Court Highest court in Australia Established in 1901 by section 71 of the constitution Role; - Interprets and applies Australian laws - Forms judgements of matters of federal significance and decides on challenges regarding constitutional validity of laws - Hears appeals by special leave, from federal, state and territory courts Can hear original and appellate jurisdictions - Original jurisdiction is only applicable for matters regarding the constitution - Typically cases appealed by the high court require reform Aboriginal and Torres Strait Islander Peoples’ customary laws ● - ● ● - ● - diverse nature of customary laws Developed overtime, to regulate society Customary laws are inextricably linked to the Dreaming which explains; - The creation of earth, by ancestral spirits - How people must behave, in relation to each other spiritual basis, the significance of land and water The land and the water are sacred, given that they sustain aboriginal life Land ownership is not recognised in ATSI law, they are only custodians family and kinship Traditionally acceptable behaviours regarding relationships Effects of kinship; - Regulates behaviour - Access to information through rituals and ceremonies ritual and oral tradition ATSI law is passed on orally and through ceremonies ORAL TRADITIONS - Establish responsibilities and obligations through stories, songs, dance, music RITUAL AND CEREMONIAL MEETINGS ● Examine the characteristics of Aboriginal and Torres Strait Islander Peoples’ customary laws. ● ● - - - Also to pass on stories and knowledge mediation and sanctions Death (by spearing) Community decisions Spearing, burning hair, fighting, whole family fighting, social ridicule, isolation Goal is to achieve retribution; evening things out relevance to contemporary Australian law Self determination; all people have the right to determine their own political, economic, social and cultural status and development - The right of a group to self govern ATSI customary laws; - Lack procedural fairness - Trials by ordeal solution/compromise is circle sentencing; whereby appropriate punishments are decided upon by the community No evidence that this prevents re-offending (but you do you → compromise) NATIVE TITLE; Constitutional- Property law, the right to control the land they live on however, the government can take control/ownership of the land at any time. NSW Aboriginal Land Rights Act 1983; recognises the indigeous people’s right to self determination and grants it to them, under this act indigenous people do not have to prove a connection to the land to make a claim over the land FAMILY LAW; ATSI marriages are recognised however as de facto relationships → under the marriage act 1961 ATSI marriages are recognised as de facto, although ATSI marriages are indirectly recognised their integrity is not recognised by the Australian legal system. This presents numerous challenges for the Indigenous community, for example, the children of these marriages are subject to a lower worth and subject to legal issues in the future. This notion is recognised under recommendation 31 (Marrying Law and Custom, 1995) w hich advocates that the ● Outline the extent to which Aboriginal and Torres Strait Islander Peoples’ customary laws have been integrated into Australian law. International law ● - differences between domestic and international law INTERNATIONAL LAWS - Sources include the United Nations (General Assembly + Security Council + International Court of Justice) - Countries have the option to follow international laws, they have the option to be taken to court, they have the option to be apart of a treaty - Countries follow international laws as they want to be reputable - Individuals may be sent to the International Criminal Court; which is for war criminals - International law is essentially unenforceable, however domestic law is enforceable - Hence domestic laws (statutes) can be made which reflect international law ● ● ● ● Distinguish between domestic and international law and examine the impact of state sovereignty. Examine the sources of international law. - - ● ● Describe the role of the various organisations involved in international law. Examine how international law impacts on and is incorporated into Australian law. ● ● - High court judges apply international law to domestic law - International law regulates international relationships and are accepted as guidelines; not binding state sovereignty Nations have the ability to make their own decisions without external interference Nations can choose which laws to ratify, in the best interest of their nations sources, including: ○ international customary law Jus Cogens; common standards which are above national laws ○ instruments (declarations and treaties) ■ Treaties Agreements between two or more countries Treaties are registered with the UN (no secret treaties) Treaties must be ratified, otherwise it’s soft law ■ declarations A group (or not) of countries which inform the world of their opinion in regards to a certain issue Not binding, but done with the intention for becoming a treaty ○ legal decisions, Precedents; are not binding but are persuasive ○ Legal writings Articles, journals or documents published by judges or UN organisations ○ role of: ○ United Nations ○ courts and tribunals ○ intergovernmental organisations ○ non-government organisations relevance to contemporary Australian law Classification of law ● Outline different types of law. ● - ● Compare the purpose of different types of law. - - ● - public law → regulates relationships between the government and individuals ○ criminal law The purpose of criminal law is to protect society from harm and punish criminals For a person to be found guilty the prosecution must prove - Mens rea → the offender intended to do it and were fully aware of the implications (applies to serious criminal cases, i.e indictable offenses) - Actus rea → the offender physically committed the act - Causation → it was the actions of the offender that caused the harm ○ administrative law The purpose of administrative law is to limit the powers of an executive branch of the government It ensures that individuals receive natural justice Administrative law is implemented through judicial reviews, who ensure that - The department did not exceed of exploit their power - That the right decision was made If an individual is violated they can seek help from the Ombudsman who have the ability to make recommendations and have strong investigative powers. ○ constitutional law The purpose of constitutional law is to limit the powers parliaments and court. This is achieved through the division of powers and the separation of powers The constitution is the source of legal authority for the parliament (law makers), however, individual rights are derived from it. private law (civil law) → regulates relationships between individuals and parties ○ contract law The purpose of contract law is to enforce and regulate agreements made between parties A contract is legally binding if there is and offer, consideration and acceptance Every contract has express terms and implied term Case study → Commercial Bank of Australia vs. Amadio (1983) - A contract was provided by the bank for the elderly couple to be the guarantors for their sons loan for his business The bank obtained the signatures of the elderly couple without explaining to them the terms of the contract. In essence, the bank took - - - ● ● ● ● Distinguish between civil and criminal court procedures. identify the role of legal - - advantage of the couples limited english Their son’s company went into liquidation and could not repay their debt, after which the bank demanded that the Amido’s sell their property, as per the terms of the contract As a result of this case, a precedent was establishing, requiring guarantors to seek legal advice ○ tort law The purpose of tort law is to protect people who are harmed by parties who they did not have a contract with It ensures that people do not harm others Negligence - Breach their duty of care, resulting in harm Nuisance - A harmful or offensive act towards the public - Late night parties, overhanging trees, barking dogs, noisy machinery Defamation - Damaging the good reputation of others through false or misleading information Trespass - Interference with another's property ○ property law The purpose of property law is to ensure that owners of property enjoy thier property without interference Regulates anything that can be bought and sold Real property → land, cars, Personal property → intellectual property criminal and civil court procedures legal personnel Judges - Decide on questions of law → application, interpretation and relevance of laws - Sums up the case for jurors and provides further instructions - Decides on the outcome of the case - They are hired by the government but can only be fired by the parliament → separation of powers Magistrates - Judges of the local court - Hold committal hearings Barristers - Lawyers who argue the cases of their clients personnel involved in the court process - Solicitors - Lawyer who assist barristers with documents and paperwork → prepare wills, conveyancing, legal advice, contractors - ● Jurors - Decide on the questions of fact - Their role is to base their decisions upon the evidence presented within court common and civil law systems Civil law systems → Japan, France, Asia + ● ● Compare and contrast common and civil law systems. Examine the conditions that give rise to law reform. Developed in western europe, derived from Roman law If there is no statutes on the issue, the court lacks jurisdiction For the case at hand the judges will look at the criminal code The parliament possess the ultimate power There is a set code of predetermined actions that will apply Common law systems → Australia, US, UK - Was developed in England In the absence of statutes, courts will develop precedents For the case at hand judges will look at existing statutes and then resort to precedents Judges can pass laws when the parliament doesn’t Judges will consider the approach of previous judges regarding similar matters → precedaent Law reform ● ● - conditions that give rise to law reform including: ○ changing social values, ○ new concepts of justice, ○ new technology agencies of reform including ○ law reform commissions, Are independent statutory bodies Their role is to ● Describe the role of agencies involved in law reform. - ● ● Examine the operation of the different mechanisms of reform. - - Simplify and modernise the law - Harmonise state and territory laws - Improve justice - Remove unnecessary laws - Eliminate defects in the law The process - Attorney-general provides the alrc with terms of reference - ALRC obtain maximal community input - Final report is composed and presented to the AG containing extensively researched proposals and recommendations ○ parliamentary committees, Suggest changes that should be made to the law They are composed of members of parliament and therefore can be subjective ○ Royal Commissions They hold ‘public inquiries’ into specific issues allocated by the government They hold strong investigative powers They are formed by members from outside the government ○ the media, The media pressure the government by emphasising certain areas The media has a large audience and are able to strongly influence public opinions and understanding They are independent of the government Lobby groups also highlight issues through the media ○ non-government organisations NGO’s are formed voluntarily and are typically not-for-profit They have a particular focus on a certain issue They are independent to the government, as the name suggests mechanisms of reform including ○ Courts, Develop reform according to changing circumstances Precedents are typically established through appeals ○ parliaments, Make new laws or amendments to existing laws Responds to community concerts ○ United Nations Encourages international support for treaties → UDHR - - - ○ intergovernmental organizations Encourage cooperation between states Provide support to members The aim of law reform is to change laws to Make them more current - Simplify the law - Fix injustices in the law Law reform reflects the changing values of society Ensures laws remain flexible to deliver justice Law reform in action Two examples of law reform must be studied. Law reform in relation to native title is mandatory. Another example may be taken from list B or may be a topic of the student’s choice. Native title ● ● ● Explain why terra nullius was an obstacle to achieving native title. Examine the roles of the High Court and federal parliament in recognising native title. Examine major Australian ● - terra nullius International law stated that uninhabited land could be acquired through settlement Inhabited land could be conquered through conquest, treaties Terra nullius made it legally impossible for ATSI people to claim native title → In 1971 the Yonglu people took the mining company to court, asserting their native title over the land, however, it was ruled that terra nullius prevailed - Gove Land Rights Case, 1971 ● ● ● the roles of the High Court and federal parliament major native title decisions legislation native title decisions. ● the effectiveness of the law reform process in achieving just outcomes in regard to native title. ● Identify and investigate a contemporary law reform issue. Examine the conditions that give rise to the need for law reform, the agencies of reform and mechanisms of reform. Assess the effectiveness of law reform in achieving just outcomes with regard to a contemporary law reform issue. ● ● Assess The Individual and the Law Students learn to ● ● Students learn about identify the types of rights to which individuals are entitled Your rights and responsibilities outline the responsibilities of citizens within a society Resolving disputes ● explain the interrelationship between rights and responsibilities ● outline the roles of law enforcement agencies ● identify and examine methods of resolving disputes between individuals ● compare and contrast disputes between individuals and those between individuals and the state assess the effectiveness of methods of ● ● the nature of individual rights relationship between rights and responsibilities ● ● the roles of the federal and state police and other law enforcement agencies resolving disputes between individuals: ○ alternative dispute resolution ○ Tribunals ○ courts ● resolving disputes with the state: non-legal methods: - Media Members of parliament Trade Unions interest groups, including non-government organisations legal methods: ● - internal review external review: administrative, judicial, ombudsman, statutory bodies including Australian Human Rights Commission, Independent Commission against Corruption (ICAC), Royal Commissions resolving disputes ● distinguish between non-legal and legal methods of enforcing rights and resolving disputes ● assess the effectiveness of dispute resolution processes in achieving justice for and between individuals ● explain the difficulties with enforcing rights ● assess the role of law reform in addressing emerging technological issues and enforcing rights ● discuss the legal implications of the use of technology and its impact on the individual. Contemporary issue:The individual and technology ● ● ● ● impacts of technology on the individual legal implications difficulties with enforcing rights future directions – the role of law reform Examples that may be studied could include: ● ● ● ● ● ● ● ● misuse of interactive technologies Cyber-bullying genetic profiling Cyberspace privacy issues security and surveillance mobile phones copyright. The Law in Practise Students learn to ● examine at least two contemporary issues that involve Australian citizen(s) in either a domestic or another jurisdiction ● describe the legal and non-legal responses to this issue ● evaluate the effectiveness of the legal and non-legal responses to this issue. ● Criteria to evaluate effectiveness could include: - resource efficiency - accessibility - Enforceability - Responsiveness - protection of individual rights - meeting society’s needs - application of the rule of law - has justice been achieved? Students learn about Issues that involve an Australian in a domestic jurisdiction, or Australian citizen(s) in another jurisdiction, focusing on the mechanisms for achieving justice and the responsiveness of the legal system when attempts are made to achieve justice. Topics that may be studied include: ● ● ● ● groups or individuals suffering disadvantage: events which highlight legal issues individuals or groups in conflict with the state criminal or civil cases that raise issues of interest to students. 7 eleven - Legal responses - Fair work (protecting vulnerable workers) act 2017 - Migrant workers taskforce - Treaties… - Non legal responses - Media - Australian council of trade unions, advocates that “The Fair Work Ombudsman should commission the development of an app that would provide temporary immigrant workers with information on their work rights and responsibilities, and with links for lodging complaints about abuses or exploitation.” - Helps migrant workers become more informed about their rights, responsibilities and how to have their voice heard
